GORDON KEENE VELLA. - On Point News

new trial under Rule 60(b)(3) upon evidence that expert witness had misstated his credentials so
as to include a license that he did not, in fact, hold at the time of trial).
The recent decision in In re Vioxx is particularly instructive here because it also involved
misrepresentations relating to factors touching upon the admissibility of an expert witness. Id.
More to the point, the misrepresentations in that case were made by the expert himself. Also
similar to the instant case, the expert in Vioxx offered testimony on the issue of liability. In fact,
the only real difference between the cases is that the expert here was proffered by the Plaintiff,
while the expert in Vioxx was proffered by the defendant.
The specific misrepresentation in Vioxx occurred during direct examination about the
expert’s qualifications and consisted of the following question and answer:
Q. Are you board-certified, sir?
A. Yes. I passed boards in internal medicine and cardiovascular disease.
Id. at 592. The witness went on to testify that, in his expert opinion, Vioxx was not a substantial
contributing cause of the decedent’s fatal heart attack. The jury subsequently returned a defense
verdict. Id.
In testimony before a different court several months later, the expert testified that his
board certification had lapsed, both in cardiology and internal medicine, and that he was in the
process of renewing those certifications. Id. at 593. Moreover, he admitted that the certification
had lapsed prior to his earlier testimony. In fact, the witness sought to justify his misstatement
by rewriting the punctuation in the response and maintained that his prior testimony was accurate
because it focused upon having “passed” his boards, rather than on whether he was or was not
currently board certified:
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